Say you’re in bed, and you hear what sounds like the shower going. It's late, and you're tired, so you pay it no mind. You wake up at 4 a.m. to get a glass of water and find half the rooms in your apartment flooded— you forgot to turn the shower off! You throw blankets and towels on the floor to soak up the water and call your building’s maintenance staff.
With the aid of a dehumidifying machine, they’re able to get most of the moisture out of the flooded areas. But the wooden floor tiles themselves are heavily damaged, and a fair amount of water seeped into your downstairs neighbor's unit, damaging the ceilings, walls and some artwork. Who’s responsible for restoring the flooring? And what about the water that poured into the apartment below?
Finding out what systems and features in an owner's unit are his or her responsibility and which are the association’s responsibility can be a very complicated. Many principles are universal, but other details can vary from building to building depending on the rules of that particular community.
According to Lee Heller, a director of business management with Associa, (a management company with locations across the U.S., including two in the Chicagoland area) owners are “typically responsible for the interior of their unit, the wall, ceiling and floor coverings. There's a hot water heater or an air handler, their appliances, the plumbing and electrical panel.” Unfortunately, this would likely include those wooden floor tiles, unless your building administration decides to be generous.
An exception, however, is piping inside the walls, says Robert Meyer, a director of engineering services for national property-management firm FirstService Residential of Illinois. “In a typical condominium association, all domestic plumbing contained within the walls (risers) belongs to the association. Conversely, the owner’s responsibility is on their side (or inside) of that wall. The unit owner is responsible for all the plumbing fixtures within their unit—tubs, toilets, sinks, faucets and drain lines from their unit to the vertical main line,” Meyer explains.
So, what else is the building or development responsible for? An association is responsible for whatever is considered part of the structure of the building, as well as common and limited common elements. This would include the hallways, lobby, elevators, basement, boilers or rooftop A/C, plus the electrical wiring from the point it enters the building from the street to the point it enters the circuit breaker or junction box.
All this talk of private usage, common and limited common elements can become quite confusing. Meyer offers a simple tip for understanding the basics of repair responsibility. “A good way to understand where responsibility lies is to ask, 'Who is able to use this fixture? Is it only the residents of the unit or all who live in the building?' If the answer is only the unit residents, then it is their responsibility to maintain and service it properly,” he says.
As in nearly everything, there are some gray areas when it comes to who's obligated to fix what in a multifamily building.
“Most misunderstandings come after an incident has occurred, i.e., water damage and electric problems,” Meyer says. “Plumbing branch lines are always an issue. While contained within the walls, these branch lines are considered a limited common element because it only services a particular unit’s kitchen or bath. Electrical service to the unit can also be an issue. Service starts at the meter, but most owners are under the impression it starts at their circuit-breaker panel.”
“For example,” Meyer continues, “when there is a failure between the meter and the unit, it is usually misunderstood to be the building’s responsibility, but it is not. In most buildings, there is a meter room on each floor, and in some cases, the distance from that room to a unit’s breaker panel can be 30 feet or more. Regardless, the entire distance is the owner’s responsibility since the electricity is being passed through the meter, leaving the meter room and powering their breaker panel,” Meyer says.
Other places at the intersection of the wall and a specific piece of equipment are a frequent source of conflict, such as windows, air-conditioning equipment and air-conditioning sleeves within the walls.
Alterations are yet another potentially sticky area—though perhaps a little less so than some of the others mentioned above, since most communities have the rules and regulations regarding alterations spelled out explicitly in their governing documents. In general, if you do an alteration, you are responsible for it, the professionals say.
It’s in the Docs
The most effective way to cut down on all this uncertainty of repair liability—and hopefully prevent it from materializing in the first place—is for residents to know the rules in their building. And for their part, building administrators should make sure the rules are clear, concise and unambiguous.
For owners, learning the rules starts with reading the governing documents, which contain all the specifics of repair responsibility, says James Erwin, founding partner of the Chicago-based law firm of Erwin & Associates LLC.
“There are assumptions made on both sides of the coin, and sometimes boards try to do the right thing or they try to be nice and in doing so, actually violate their declarations and bylaws and they pay for something when they shouldn't have,” he says. “Most times, gray areas result from just a simple lack of understanding and lack of education in the concepts. They don't understand what makes for a limited common element. Even if they read it, they don't understand what that means. If I tell them, 'The balcony outside your window only serves you,' that they seem to get. But pipes running into their unit, that doesn't seem right to them. That's why we say, 'Buyer beware.' When you buy, you have to read the declaration and make sure that you're okay with it,” Erwin advises.
“It's the declaration that generally determines the specific answer or the answers specific to their property and specific systems, whether they be radiators, ducts or flues,” he continues.
“The Illinois Condominium Property Act contains a requirement that must be within the governing provisions to a certain extent, but most declarations go further than that. One thing that I always point out is it's important to distinguish between the responsibility to maintain and repair versus the liability for the cost to maintain and repair. In certain instances, the former, the responsibility to do the maintenance or repair, falls to the association but the owner can still be charged for that cost.”
“We just had a case not too long ago,” Erwin explains, “where there was an incident with a pipe located just outside the wall of a unit, so the unit owner assumed the cost liability would fall to the association. But as many declarations do in Chicago, theirs specified that if it was a pipe or other system solely serving one or less than all of the units—meaning it was a limited common element—the cost would be borne by the unit owner, even though it was outside the unit. So in this case, we charged it back to the unit owner. It's specifically what the declaration called for.”
The professionals agree that the majority of Chicagoland area associations have the specifics of building system responsibility outlined in their documents. So, while it might be rare for a board to have the need to amend their documents with repair and maintenance responsibilities clauses and clarifications, it can be done if need be. Sometimes, even just developing a simplified version of these clauses might guide owners to a better understanding of maintenance responsibilities, Meyer says. If a board does feel the need to go this route, its attorney should carefully review these documents to make sure they conform with the building’s current or desired practices.
The Importance of Insurance
Documents aside, all shareholders or unit owners must carry adequate insurance coverage. This is one way management can be sure that gaps are closed and conflicts avoided," Heller says. Such a policy can cover not only personal items such as computers and furniture, but also paint, wallpaper and flooring.
Adequate insurance coverage also plays an important role in the intersection of maintenance and repair responsibility, Heller adds. He illustrates this point by asking readers to visualize a Venn diagram.
“One circle is ownership—who owns the item, one is maintenance responsibility, and the third is insurance responsibility,” he says. “With well-written or smart documents, they're all the same. But unfortunately, many times they are not the same. So in some regions, state statute comes in and says that by law, the association is responsible for the insurance on the air-conditioning system from the roof to the air handler. So in the casualty event—a storm or a fire or whatever—the claim would go through the association's insurance, and they pay the premium for that.”
“However,” Heller continues, “that immediately makes owners think the association is responsible to maintain the air-conditioning system, which it's not. So when it breaks, or it isn't serviced regularly, those problems come up and those are the unit owner's absolute responsibilities. On the third circle, let's say the unit owner owns the air handler in their unit and the air-conditioning compressor on the roof. They own that equipment, but that unit up on the roof is in a common area that's not necessarily available to unit owners. So, that sometimes creates a problem as well,” he says.
Oftentimes, it’s not easy to determine responsibility for repair elements. Most of the time, whether you’re talking about condos, co-ops or townhomes, and when owners take good care of their units, problems won’t occur. For those times when they do, be sure to consult your attorney and building manager and look to your governing documents for answers.
Raanan Geberer is a freelance writer and a frequent contributor to The Chicagoland Cooperator. Editorial Assistant Enjolie Esteve contributed to this article.